4.  The applicant is the Austrian Broadcasting Corporation (ORF), a public law foundation (Stiftung öffentlichen Rechts) with its seat in Vienna.
5.  On 13 July 1999 the applicant broadcast information on the evening news of its regional television channel about the release on parole of K., head of a neo-Nazi organisation called Extra-Parliamentary Opposition True to the People (Volkstreue Ausserparlamentarische Opposition – “VAPO”) who had been sentenced under the National Socialist Prohibition Act (Verbotsgesetz, “the Prohibition Act”). This news item also mentioned his deputy S., who had been convicted under the Prohibition Act in 1995 and had been released on parole five weeks earlier. Its text ran as follows:
“For years G. K. [full name] was known as the head of the Austrian neo-Nazi scene. But it was only after the strengthening of the Prohibition Act in 1992 that he was charged and sentenced to eleven years' imprisonment. Many other members of the VAPO were put behind bars along with him, among them H.-J. S.[full name] – who has also recently been released. K.[family name], now aged 41, made the headlines even while in prison in Krems, for instance at the first letter bomb trial. His release today, however, took place without much ado. Waiting journalists saw nothing but his belongings packed in boxes.”
6.  While the third sentence of this text was broadcast, a picture showing S. at his trial in 1995 was broadcast for a couple of seconds.
7.  The news item was followed by a brief statement of the commentator. He stated that K. had served seven and a half years of his sentence. The Public Prosecutor had opposed his release on parole, but the Vienna Court of Appeal had granted K.'s request, having refused his first request for early release in 1997.
8.  On 23 September 1999 S. brought proceedings under Section 78 of the Copyright Act (Urheberrechtsgesetz), requesting that the applicant be prohibited from publishing his picture without his consent accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or once he had been released on parole. In addition he requested a preliminary injunction to that effect.
9.  In its submissions in reply (Klagebeantwortung) the applicant asserted that it had reported on true facts. As regards the publication of the applicant's picture the applicant referred to the Supreme Court's established case-law that Section 78 of the Copyright Act had to be interpreted in the light of Section 7a of the Media Act (see below). Given that S. was an adult who had been convicted of a crime, it followed from Section 7a (2) of the Media Act that the publication of his picture only violated his legitimate interests if it substantially prejudiced his economic advancement. Even if the claimant's legitimate interests were affected, they had to be weighed against the public interest in the publication. In the present case, the public interest was predominant, given that VAPO was an organisation which aimed at destroying the Austrian constitutional order and that two of its leading members, namely K. and the claimant, had been released from prison within a short period. Other media including two leading daily newspapers had also mentioned S.'s release in the context of reports on K.'s release. Finally, the applicant emphasised that under the relevant broadcasting laws it even had an obligation to impart information on political issues.
10.  On 11 November 1999 the Vienna Commercial Court (Handelsgericht) granted the preliminary injunction.
11.  The Commercial Court noted that the following facts were undisputed: The claimant, who had been convicted under the Prohibition Act in 1995 and had been sentenced to eight years' imprisonment, had been one of the leading members of VAPO which aimed at fighting against democratic order in Austria. He had participated in training camps organised by VAPO which were destined to train to kill. He had been released on 7 June and K. five weeks later on 13 July 1999. On the latter date the applicant had broadcast the report at issue.
12.  As to the interpretation of Section 78 of the Copyright Act in conjunction with Section 7a of the Media Act, the Commercial Court agreed that the legitimate interests of an adult who had been convicted of a crime were only violated if the publication of his name or picture disproportionately prejudiced his economic advancement.
13.  Applying this case-law to the facts of the present case, the Commercial Court noted that the report in the present case dealt mainly with K.'s release on parole. In its view there was an evident interest of S. not to have broadcast his picture taken in the course of criminal proceedings dating years back, even if the fact that he had meanwhile been released on parole was mentioned. S.'s picture had been widely broadcast at the time of the criminal proceedings against him. However, its broadcasting at the present stage did not add any relevant information to the report at issue, even if the criminal proceedings against him had been among the most important ones conducted under the Prohibition Act.
14.  On 21 June 2000 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal.
The Court of Appeal confirmed the Commercial Court's assessment that the publication of S.'s picture had violated his legitimate interests within the meaning of Section 78 of the Copyright Act read in conjunction with Section 7a of the Media Act. Like the Commercial Court it stressed in particular that S.'s picture had been broadcast in the context of a report on the release of another person, K., and found that S. had an evident interest not to have his picture published in that context even if his own release dating some weeks back had also been mentioned. Even taking into account that S. had a certain degree of notoriety, his advancement within the meaning of Section 7a of the Media Act had been hampered disproportionately by the new publication of a picture taken at his trial.
15.  The Supreme Court (Oberster Gerichtshof) rejected the applicant's extraordinary appeal on points of law on 13 September 2000.
In the subsequent main proceedings, the Vienna Commercial Court gave judgment on 31 December 2000. It ordered the applicant to refrain from publishing S.'s picture without his consent if it was accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or he had been released on parole. In its reasoning it repeated the arguments which had been developed in the preliminary injunction proceedings.
16.  On 29 November 2001 the Vienna Court of Appeal dismissed the applicant's appeal. It repeated the arguments set out in its judgment of 21 June 2000. Moreover, it referred to the Supreme Court's judgment of 13 September 2000.
17.  On 12 February 2002 the Supreme Court rejected the applicant's extraordinary appeal on points of law.
18.  The decision was served on the applicant's counsel on 8 April 2002.